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Publication - Report

Report of the Working Group on consumer and competition policy

Published: 10 Nov 2015
Part of:
Business, industry and innovation, Economy
ISBN:
9781785448119

Report considering how best to implement changes to the consumer and competition landscape.

34 page PDF

565.2kB

34 page PDF

565.2kB

Contents
Report of the Working Group on consumer and competition policy
3. Consumer Protection and Competition

34 page PDF

565.2kB

3. Consumer Protection and Competition

Advocacy

The Working Group identifies the need for a robust system of consumer advocacy. In particular, it notes, that to be effective it requires technical knowledge in the regulated sectors as well as expertise across general private and public markets. It is important to make the distinction between general consumer advocacy and advocacy for the regulated sectors. General consumer advocacy is, and will continue to be, provided by a range of bodies, such as Citizens Advice Scotland ( CAS) and Which? who advocate on behalf of consumers on a range of issues across public and private markets. The consumer advocacy role for the regulated sectors, however, requires a consumer body not only to advocate on behalf of consumers to policy makers, but also to work closely with, and challenge, economic regulators on complex regulatory policy and decisions to ensure that they reflect consumers' interests.

The role of advocacy in Consumer Scotland

The role of advocacy should be to act independently on behalf of consumers in general, to identify issues that are detrimental to consumers and then ensure these issues are addressed by educating, advising and influencing policy makers, businesses, service providers and regulators. Within the current framework, there are gaps in the provision of consumer advocacy, in part a legacy of the narrowing down of Consumer Focus Scotland's remit. The Working Group agrees that Consumer Scotland should be an outward facing organisation that gathers information from a wide range of sources, and through evidence based analysis, provides collective input on consumer issues directly to policy and decision makers.

As already noted, the Consumer Futures advocacy powers (for energy, post and water) currently sit within Citizen Advice Scotland ( CAS), whose principal focus is necessarily on social policy issues and providing advice to vulnerable consumers. Consumer Scotland will develop a partnership working approach with a range of stakeholders in order to strengthen the links between advocacy and advice (including education and information), enforcement and redress as well as competition.

There is an on-going need to balance the needs of future consumers with consumer's needs today. The Working Group, therefore, believes that the statutory Consumer Futures powers should sit within Consumer Scotland, ensuring it can provide general and regulated sectors consumer advocacy as well as horizon scanning functions. Consumer bodies would be able to feed in information they receive directly from consumers to inform Consumer Scotland's workplan. However, CAS has requested that further consideration be given to support the transfer, given that it has only been two years since the function was transferred to them.

Under the current provisions of the Scotland Bill, the Scottish Government will gain consumer advocacy in the specific sectors of post, electricity and oil & gas. Early indications are that other economic regulators are keen to work with the Scottish Government. Consideration should be given to how this might best be achieved, for example, through Memoranda of Understanding (MoUs).

The importance of technical expertise in the regulated sectors

The Working Group feels that it is critical that Consumer Scotland should maintain an understanding of the regulatory framework in order to provide effective challenge. Where there are difficulties for Consumer Scotland to maintain the technical expertise needed to interact effectively with all economic regulators in technically complex areas, it will need to work in close partnership with academia, international experts, other stakeholders and commission expertise.

Furthermore, Consumer Scotland will need to strike a balance between regulatory and general consumer expertise. Consumer Scotland should, therefore, use its general consumer expertise to challenge regulators and businesses effectively from a consumer perspective and to look at the wider picture. This will prevent companies and regulators from dragging the consumer body into technical detail as a way of diverting a focus on outcomes.

The Working Group identifies a significant element of commonality of consumer issues across the regulated industries. Consumer Scotland should be able to transfer thinking between sectors in the interests of consumers and be able to 'benchmark' across sectors. This can be a very powerful way of influencing behaviour and could include looking at key areas across sectors, such as service levels and output delivery, as well as more technical areas such as financing, security of supply, connections and metering.

General Consumer Advocacy

The Working Group believes that while Consumer Scotland should maintain an on-going focus on consumer advocacy for all the regulated sectors, it should also look at consumer issues beyond these. It feels that more work is needed to scope the existing sectoral consumer advocacy landscape in public services and in the unregulated sectors in order to avoid any duplication. Consumer Scotland should work in partnership with bodies such as CAS and Which? who have general consumer advocacy at their core.

Accordingly, Consumer Scotland's statutory powers should reflect its responsibilities in the regulated sectors and for general consumer advocacy and its funding should also allow for both. Given that Consumer Scotland will receive ring-fenced levy funding for the regulated sectors (in energy, water and post) and have associated statutory duties to fulfil, it will need to ensure that it maintains a focus on these sectors, while also carrying out more general consumer advocacy across public and private markets.

There is, therefore, merit in a dual approach: separating the specific regulated sectors work from the more general role. For general advocacy, Consumer Scotland could undertake an assessment, as the Competition Market Authority does, in order to determine areas of particular concern each year and establish its priorities. Horizon scanning should also be a core function of Consumer Scotland and will be informed through significant engagement along with consumer research activities. Given that this work might be funded by general expenditure rather than levy funding, there will always be some risk that there may be a reduction in general consumer advocacy funding, which would significantly change the balance of work in Consumer Scotland. Our hope is this workstream will continue to be properly resourced.

Consumer Scotland will need to strike the balance of being focused and effective, rather than being spread too thinly. In order to achieve this within a wide remit, it will have to conduct transparent prioritisation of consumer detriment. The Working Group suggests that this could be achieved through a work planning process similar to the approach that was previously used by Consumer Focus Scotland and the General Consumer Council for Northern Ireland. These organisations considered: the level of consumer detriment; the impact on disadvantaged consumers; whether other organisations were undertaking this work and the realistic chance of achieving impact.

Consumer advocacy in the regulated sectors

The Working Group acknowledges that regulators are already engaging actively with consumers. It has identified a clear role for Consumer Scotland in providing advocacy input to the regulatory process in terms of general consumer interest. This should be based on research and analysis. In doing so, it must work across UK markets to provide a Scottish consumer view, which will sometimes be aligned with, and sometimes distinct from, the views of UK consumers. Consumer Scotland should work in partnership with UK customer bodies and regulators. These relationships should, preferably, be maintained through a MoU outwith energy, post and water.

The Working Group felt that Consumer Scotland should also aim to promote a consumer focused approach to economic regulation. In doing so, it should engage closely with the UK regulators to develop the regulatory framework in Scotland. It should aim to ensure that the UK regulators' consumer engagement approaches reflect the specific interests of Scottish consumers. For example, in the water sector - which is already devolved to Scotland - a dedicated Customer Forum is able to engage directly in the price review settlement. It is, however, potentially more problematic to replicate this model at a UK level in sectors where economic regulation is not currently devolved.

The Scottish Government should aim to pilot the approach of increased consumer engagement with UK regulators. For the UK-wide economic regulatory bodies, careful consideration will be required as how best to establish consumer focused approaches that will allow for direct input from Scottish consumers. However, it is worth noting that in some cases UK regulators already take a different approach with Scottish matters. For example, the Office of Rail and Road regulates Network Rail separately in Scotland from the rest of Great Britain.

4. Advice (including education and information)

The Working Group believes it is essential that consumers in Scotland have an effective system of advice that will provide access to relevant information and assistance when needed - such a system will create confident consumers who feel empowered to make good choices. This will, in turn, increase consumer trust in business and public services.

At present, however, there are a number of issues that reduce the effectiveness of advice provision in Scotland. The Working Group identified that the most crucial of these were: concerns over the accessibility and awareness of advice availability; the complexity of the landscape and gaps in provision; and a lack of useful data sharing between advice providers and other agencies involved in consumer protection.

Awareness

Advice will only be effective if those whom need it understand that it is available, and are able to access it. Evidence provided to the Working Group from the advice expert panel suggests that advice often does not reach a wide enough audience. Many consumers still do not know where to turn when they have a problem, and would benefit from advice at an earlier stage in their 'consumer journey'. Indeed, they often do not know they need advice until they have already started on this journey, for example, after they have started formal proceedings, or when they have missed the opportunity to take action at all because they were unaware of their options. Likewise, there may be underlying problems that go unaddressed, and only come to light when a consumer seeks advice on a related matter. For example, a consumer who is struggling with the terms of a payday loan may have taken it out because they were struggling to heat their home. Intervention at an earlier stage could, in many cases, help both consumers and businesses resolve issues before there is a build-up of mistrust or related problems.

Accessibility

Although no single profile exists for the kind of person who does or does not seek advice, there is evidence - for example, from Trading Standards commissioned research in 2014 [18] - to suggest that younger, more socially disadvantaged people are less likely to know where to get advice or help, to understand their rights, or to assert them. In particular, evidence from the advice expert panel suggested that men under the age of 35 are less likely to make use of advice services, while evidence from Scottish Citizens Advice Bureau ( CAB) service shows that some underrepresented groups, such as those with disabilities, are more likely to seek help. It is clear that a better understanding of who needs and seeks advice, and by which means, would assist advice providers to reach a wider range of users.

Complexity and gaps in provision

The number of advice providers can lead to confusion amongst consumers about where to turn. The Citizens Advice Service and the Citizens Advice Consumer Service are the principal providers of consumer advice, providing assistance either face-to-face, online or over the telephone. However, consumers can also seek advice from a variety of other services, for example, the Money Advice Service, some Trading Standards services and a variety of sectoral schemes, such as Energy Savings Trust.

Nonetheless, despite the number of providers, there is currently an absence of important second tier advice provision in some local authority areas, which can lead to consumers not getting the help they need. Second tier advice is available to help consumers reach a solution when they have not received a satisfactory resolution. Gaps in provision are not only detrimental to individual consumers, but also to consumer protection more generally. Advice providers are often in an ideal position to spot trends and patterns of consumer harm by looking at the cases consumers bring to them. If consumers are prevented from doing this, that ability may be lost and enforcement action not initiated against unscrupulous traders who indulge in persistent trading malpractice.

Data sharing

While a number of advice providers work well together and communicate regularly at a high level, there are times when difficulties in sharing information between agencies have made it more challenging to progress cases efficiently. In the most serious cases, this has resulted in a failure to spot patterns of consumer harm, which has prevented swift enforcement action, which in turn has resulted in higher numbers of consumers being affected.

Solutions

Given the number of advice providers and the issues identified, the Working Group concludes there is a role for national coordination of advice (including education and information), and the setting of strategic priorities. There should also be National Standards around quality assurance and advice provision. These National Standards should be adopted across public, private and voluntary organisations and should provide consistency of agreed processes, thus ensuring consumers receive the same level of service regardless of where they seek advice.

There should also be a greater emphasis on the promotion of advice provision, for example, advertising and marketing in places such as libraries, GP surgeries and student unions. This should be supplemented by early intervention in schools, colleges and universities to promote active consumers. By accessing education providers and speaking to pupils and students, consumers will more likely know their rights and be comfortable and confident in standing up for them from an early age. Evidence from Northern Ireland suggests that there may be much to be gained by including consumer education and financial capability skills in school curricula and the Scottish Government should consider if this could also apply in Scotland.

Finally, it is crucial that an early stage approach is adopted. A common 'signposting and triage' model with a single entry point would ensure that consumers are directed to the relevant level of advice immediately and would allow consumer complaints to be resolved quickly and correctly. The additional step of a referral system based on the one already used in the CAB service would prevent consumers getting lost in the system and reduce the number of people who drop out. Furthermore, any new process must ensure that consumers are made aware of any changes made to the existing system, and give their full informed consent to their details being shared.

The role of Consumer Scotland

Since there is already an established network of consumer advice provision in Scotland, the Working Group is in agreement that Consumer Scotland should not deliver frontline advice. However, the Working Group concludes that Consumer Scotland should be well placed to: take on the role of strengthening data sharing; ensure delivery bodies work together effectively; set strategic priorities and national standards; and raise awareness of advice provision. The Working Group recommends that Consumer Scotland should work with existing partners, from advice providers to education bodies to ensure that existing national standards are acknowledged.

To this end, the Working Group wish to see Consumer Scotland focus on outcomes based on a clear understanding of the consumer advice landscape and recognition of local and national issues. It should set Scottish national priorities in relation to consumer protection that all partners work towards, and take account of aims and priorities in the broader advice provision landscape. These should be informed by intelligence gathered from all relevant stakeholders and should complement local priorities.

Another opportunity to impact outcomes is for Consumer Scotland to develop a clear education strategy that provides tools for today's consumer issues and empowers the next generation of consumers by developing financial capability and general consumer skills. There is an opportunity for Consumer Scotland to work in partnership with consumer advice agencies to help provide relevant information to inform consumer choices. Additionally Consumer Scotland should work with Education Scotland to inform curriculum development ensuring that the needs of tomorrow's consumers are adequately met thus reducing future detriment.

5. Enforcement

The Working Group recognises the key role that enforcement plays within the overall consumer protection landscape. It notes that there are a number of reviews of Trading Standards underway or due to begin shortly. There is agreement that the current arrangements are a barrier to guaranteeing a strategic and consistent approach to addressing consumer problems. To strengthen protection for consumers there is agreement that more collaborative working at both national and locals levels is needed.

Direction and Purpose

The Working Group feels that all the evidence shows conclusively that the current arrangements are not fit for purpose and do not serve the best interests of consumers or businesses. The Scottish Government has the key role in driving forward any changes required to deliver a new vision for enforcement. A range of policy and resourcing issues need to be taken into account when determining the optimum number of trading standard teams that would be ideal. There also needs to be an agreed vision of Trading Standards by Consumer Scotland taking due account of the UK Government, Scottish Government, local authorities, consumers and business.

Consumer Scotland should be responsible for setting national priorities, having due regard to the views of stakeholders. National standards would flow from national priorities, which should also be the responsibility of Consumer Scotland. Consumer Scotland should agree an annual operating plan. All of this would need to be undertaken following substantial consultation with stakeholders.

The Working Group feels that Consumer Scotland should adopt a risk based approach to enforcement within the priorities of their workplan. For example, Scottish Environment Protection Agency uses a spectrum of compliance to tailor its approach to enforcement: at one end are those deliberately flouting regulations (prosecute); in the middle those who want to comply but don't have the necessary knowledge (educate); and at the other end those who are models of compliance (use as exemplars). Trading Standards already target resources to the highest risk areas, but the development of service standards by Consumer Scotland could improve the effectiveness of this approach and allow it to be codified, if necessary. Recognition also needs to be given to market surveillance duties given to local authorities and delivered through their Trading Standards services.

Consumer Scotland should develop a strategic approach and will need appropriate levers to facilitate change. Funding of Consumer Scotland must ensure it can deliver its objectives and should include enough flexibility to accommodate additional activities in the future. The Working Group identifies the importance of Consumer Scotland being able to separate its advocacy and enforcement roles. However, enforcement needs to be closely aligned with advice and redress: the four pillars of consumer protection are not equidistant. It was noted that the Consumer Council Northern Ireland manages advocacy and enforcement (second level complaint functions) within one overarching organisation.

Accountability

Individual Trading Standards services need to be accountable nationally but arrangements to secure accountability for local priorities would need to be put in place. Consumer Scotland's operating plan must strike a balance between national and local priorities. Trading Standards should report to Consumer Scotland on the delivery of their plan. Consumer Scotland requires suitable powers to deal with a situation where a local delivery is not performing in a satisfactory manner.

The Working Group highlights a need for Consumer Scotland to develop good relations with other agencies. The creation of the Crime Campus at Gartcosh, which brings together representatives of various intelligence gathering agencies, has improved co-ordination at both a strategic and an operational level and could be further developed. Community Planning Partnerships could also offer scope for Trading Standards services to link to other service providers.

Resources

Consumer Scotland could use its position to tackle specific issues that are currently not addressed centrally. For example, it could ensure that Trading Standards services have adequate IT systems and officer competency in place to undertake e-commerce investigations. It could also develop a Trading Standards workforce strategy which would tackle the issue of succession planning in what is an ageing profession while offering more training opportunities and career development by moving between the four pillars.

The issue of how data are gathered, structured and shared needs to be considered and may need to feature in legislation. A national data strategy will be required to ensure IT systems can speak to each other and sets of codes are compatible. Systems also need to be robust so that crime agencies have enough confidence in Consumer Scotland to share data with it.

The current national teams (illegal money lending and Scambusters) based in Trading Standards Scotland ( TSS) within COSLA should be located in one Trading Standards local delivery structure whilst still ensuring that there is a specialist resource able to work across the whole of the country tackling the more serious and cross border criminality. The elements of TSS which look at strategic intelligence and national priorities should be placed in Consumer Scotland. Consumer Scotland should, with input from other stakeholders, ensure the strategic tasking of Trading Standards services, but operational tasking and investigative work should be left to the local management.

Community based hubs could provide a simplified approach to delivering advice (including education and information) and other consumer services. As hubs should be advice driven and with accessibility being a primary driver resulting in the current predominance of web and phone based advice provision, there is no practical requirement for Trading Standards services to be co-located with them, but there is a need for good lines of communication between all four pillars, which can be facilitated by Consumer Scotland.

6. Redress

The Working Group recognises that consumer redress is an important pillar of consumer policy. It is essential that consumers have a means of solving disputes with traders or service providers outside the costly and time consuming court system.

Scottish Public Services Ombudsman ( SPSO)

It should be noted that in the public sector, Scotland has led the way across the UK by forming the Scottish Public Services Ombudsman ( SPSO) streamlining the process for consumers to lodge a complaint. It handles the final stage complaints concerning councils, the NHS, housing associations, colleges and universities, prisons, most water and sewerage providers, the Scottish Government and its agencies and departments, and most Scottish public bodies. It replaced three previous offices - the Scottish Parliamentary and Health Service Ombudsman, the Local Government Ombudsman for Scotland and the Housing Association Ombudsman for Scotland. In so doing, it receives data on a variety of vital public markets, and works with organisations to learn and improve from past mistakes.

Going forward, the SPSO will be a vital source of intelligence and it has the potential to serve as an example for how Scotland could continue to innovate in the consumer ADR landscape.

Challenges

The Working Group identified a number of challenges consumers faced when navigating the current redress landscape. The most significant of these were considered to be: the fragmented and complex landscape; the potential for gaps; the lack of consumer awareness of available Alternative Dispute Resolution ( ADR) schemes; and the lack of strategic oversight.

The Working Group concludes that navigating the consumer redress landscape is unnecessarily complicated for consumers and is likely a deterrent to more widespread use of consumer ADR services. According to research undertaken by the Office of Fair Trading ( OFT) in 2013 [19] , only 64 per cent of people who experienced a problem took any steps to complain about it. This figure is far lower in some industries for example in legal services just 13 per cent of those who were dissatisfied pursued a complaint.

The Working Group is of the view that the Department for Business, Innovation and Skills' implementation of the consumer ADR Directive will do little to improve this situation and may, in fact, increase the complexity of the landscape. For example, even though businesses must provide consumers with information on accredited consumer ADR schemes, there is no requirement for businesses to engage with one. This means businesses could provide information on a scheme even though it planned to use a non-accredited one, or indeed, not to use a consumer ADR scheme at all.

Additionally, while the creation of a new Consumer Ombudsman portal run by Ombudsman Services may significantly reduce sectors in which there is no accredited consumer ADR provider to hear a dispute, the Working Group believes this will not eliminate gaps entirely. Also, as the new service is in the early stages of development, its impact will need to be monitored.

The Working Group believes that complexity of the landscape is compounded by a lack of consumer awareness of available services and trust in their independence. Additionally, the Working Group noted that forms of ADR, such as mediation and arbitration, were not always flagged up to consumers as possible alternatives.

Also the Working Group notes that, while the recent EU directive on ADR [20] compels a competent authority to accredit ADR services, there are a variety of organisations responsible for this accreditation in the UK, including the Chartered Trading Standards Institute and regulators responsible for statutory redress schemes. This situation, in the Working Group's view, is adding to confusion rather than reducing it for both consumer ADR providers and consumers.

There are also different complaints procedures and criteria operating across different consumer ADR providers, which make it difficult for a consumer to develop confidence in navigating them. The Working Group is also concerned that this lack of oversight and national standards means that data sharing is not always used effectively to identify trends and prevent further consumer harm.

Addressing the challenges

The Working Group recommends that the Scottish Government should continue to be proactive in developing a more effective consumer redress landscape, focusing particularly on coordinating and developing standards for consumer ADR providers. Given the number of bodies currently carrying out consumer ADR, the Working Group did not see a need at this time for the Scottish Government to create a body which would offer consumer ADR of its own. However, the Working Group did strongly recommend that the impact of the Consumer Ombudsman portal should be kept under review by Consumer Scotland to determine how well it filled the existing gap for consumer disputes.

The Working Group also proposes a single entry point for consumers to contact and be directed to the right consumer ADR provider. Administering this would require strong links with existing consumer ADR schemes. Developing these links should not only help simplify the landscape, but also ensure better data sharing of complaint information to identify trends and prevent harm.

The Working Group proposes that the Scottish Government should consider whether these functions could be overseen by Consumer Scotland, thus ensuring that all four pillars of consumer protection are strongly linked.

The Working Group also suggests that Consumer Scotland, if delivering these functions, could seek to become the competent authority for Scotland, which would allow it to set appropriate standards for Ombudsmen and other consumer ADR schemes operating in Scotland. Other functions should include: directing consumers to accredited consumer ADR providers; monitoring performance of providers; publishing best practice principles; using intelligence from the sector to respond to areas of concern and help businesses improve performance; and publishing details of organisations that have not complied with resolutions. The awareness and use of mediation and arbitration should be increased to make consumers aware of its potential benefits. More generally, work should be done to understand the factors that deter consumers from using available ADR services, and its findings turned into practical measures to overcome these.

7. Competition

The Working Group is clear that the Scottish Government should make full use of the competition powers that are being devolved. It recognises that economic activity flourishes when consumers can trust businesses, and that consumer trust is necessary to ensure a flourishing economy. The Working Group highlights clear benefits to Consumer Scotland being able to review Scottish markets and public services that have the potential to lead to consumer detriment or competition concerns, as a significant lever going forward.

Competition policy and enforcement landscape

The devolved powers on competition policy will facilitate a greater focus on competition within Scotland than has previously been the case. Whilst this is welcomed, Scottish Ministers need to be clear on the rationale for establishing a Scottish competition policy and how it is distinct from that of the UK or EU. The Working Group acknowledges that the overarching EU and UK Government competition policy framework is sufficiently general to be appropriate for Scotland. However, the Scottish Government may wish to articulate its needs around differences in the relative economic importance of different sectors and other related issues such as structural differences in markets and Scotland-specific areas of concern.

The Competition and Markets Authority ( CMA) remains the UK competition authority and has a key role to play in investigations and in delivering competition policy outcomes in Scotland. There should be a key division of roles and functions between Consumer Scotland, the Scottish Government and the CMA and a clear set of structures and administrative arrangements for them to work within. This would be key to building credibility and effectiveness.

Scottish Government policy for Competition

The Working Group feels that the Scottish Government should set out priorities for competition and these should be kept under annual review. Consumer Scotland should take account of these priorities however it may dissent from the views of government, if it believes if these are not in the consumer interest.

Engagement in market studies and investigations

Whilst the recent expansion of CMA's representative office in Scotland has been welcomed, further work is needed to ensure that both the CMA and Scottish stakeholders, including the Scottish Government, business organisations and consumer bodies, contribute and participate fully in the CMA's market studies and investigations. This is of vital importance where markets may be of greater economic importance in Scotland compared with the UK as a whole. The Scottish Government needs to consider the reasons for lack of engagement amongst Scottish stakeholders with a view to increasing participation going forward. By the same token, the CMA needs to consider how it will increase its engagement in Scotland, with suggestions including establishing a Scottish advisory board, a Scottish representative on the CMA board and with regards to market investigations, additional Scottish members.

Analysis of Scottish markets

The Working Group identifies a need to assess differences in the relative economic importance of sectors and other related issues in Scotland, as compared to the UK as a whole, including structural differences in markets and areas of consumer protection or competition concern which might be occurring to a greater extent within Scotland. These assessments would lead to a greater focus and improved basis for prioritisation of Scottish work, including influencing CMA priorities. This would, in turn, allow engagement and research in Scotland to form key elements of CMA market investigations, as well as highlighting where there may be differences in relation to possible adverse impacts on competition and consumer detriment occurring in Scotland.

However, any such assessment would need to be a technically sound examination of Scottish markets, consistent with accepted CMA methodologies. This would enable market investigations to be more credible and effective and to identify interventions suitable for Scottish markets, particularly in relation to ensuring that these are considered by the CMA.

The Working Group also stresses that Consumer Scotland's work on markets should cover the interactions between businesses - not just the relationships between consumers and businesses. Whilst the end point for competition analysis is the impact on consumers, interactions between businesses in the supply chain will have both direct and indirect impacts on consumers. It is, therefore, important that Consumer Scotland is able to consider the competitiveness of all stages and components of markets and their potential impacts on consumers. This need to look at the wider working of markets should not be confused with its consumer advocacy role. As such, Consumer Scotland would play no role in disputes between, or matters between businesses where the consumer interest is remote.

Competition advocacy

There is a clear need for an informed and objective assessment of the competition impact of Scottish policy and legislation. Whilst the CMA now has this important competition policy tool [21] at its disposal in relation to Westminster legislation, there is no such challenger to policymakers in Scotland. The establishment of an equivalent role in Scotland will ensure that Scottish Government is aware of where unintended consequences of government policy may lead to unfair treatment or distortions in competition.

Collective Actions

New powers to bring collective redress claims in the Competition Appeal Tribunal ( CAT) pursuant to Section 81 and Schedule 8 of the Consumer Rights Act 2015 came into force on 1 October 2015 and are applicable in Scotland. Under these powers the CAT can approve collective proceedings and authorise a person to act as class representative. Although it would be entitled to do so, it is unlikely that Consumer Scotland would itself want to bring a claim or act as class representative. It would be likely, however, to take a keen interest in any claim brought on behalf of Scottish consumers or businesses or otherwise affecting Scotland and, if necessary, to lend its support and encouragement. Sufficient resources to do this would need to be made available.

Credibility

Any competition expertise within Consumer Scotland will need to be credible. In particular, thought is needed as to how the competition part of Consumer Scotland will work and speak with adequate authority within what will be a predominately consumer-focused body. Clear understanding about roles, relationships and expectations between Consumer Scotland and its stakeholders will need to be established. If it is to be respected and listened to, it must have open and honest relationships with stakeholders who may be critical as well as supportive. The Working Group feels that having leadership with the right experience and skills will play a key role here.


Contact

Email: Peter Irving, peter.irving@gov.scot